Title: Montemuino -v- Minister for Communications Ors:
HIGH COURT
Judgment was given by Mr Justice Feeney on May 30th, 2008.
JUDGMENT
The forfeiture of an entire fishing catch, in addition to exposure to a fine of up to €100,000, as the consequence of conviction under the Fisheries Act as amended, is not disproportionate in the light of the intention of the legislation, and is not unconstitutional.
BACKGROUND
Juan Montemuino, a Spanish national and fisherman, was the master of a fishing boat, the MV Ocean, registered in Tralee. It was owned by Patrick Browne and leased to Brendan Rogers.
On December 8th, 2005, it was boarded by sea fishery protections officers as part of a routine inspection, and detained. Mr Montemuino was charged with two offences, of having on board a fish species known as fork beard without a licence, and of failing to record this fish in the logbook. Criminal proceedings were brought in relation to the second charge. The charges were brought under the Fisheries Act 1959 as amended by the Fisheries Amendment Act 1983, and under EU Regulations governing the control of catches.
The offences can only be tried on indictment. The legislation provides for the mandatory forfeiture of both the catch and the fishing gear on board, as well as for fines up to €100,000, on conviction.
Mr Montemuino was formally charged and sent forward for trial to Tralee Circuit Court. He then took judicial review proceedings challenging the legislation on the grounds that it contravened his rights under Articles 40.1 and 38 of the Constitution, and was discriminatory.
His solicitor pointed out that the amount of fork beard fish on the vessel was worth only €600, while the total catch was worth €31,057. There was no fishing gear on the boat when it was apprehended that would have been subject to seizure. The solicitor also said that in the normal course of events his client would have pleaded guilty, but, in view of the fact that the offence could not be tried summarily, and the disproportionate nature of the penalties, he took these proceedings.
He was seeking declarations that the Sea Fisheries (Control of Catches) Regulations 2003 were invalid in the light of the Constitution, that the Fisheries (Consolidation) Act 1959, as amended, was invalid, and that they failed to respect the applicant's rights in EC law.
Mr Justice Feeney pointed out that the legislation derived from the EU community fisheries policy. The recital specifies the role of logbooks and the registration of landings and sales declarations, including in relation to fish not subject to quotas.
He said that the measures list the sanctions that could be taken against those that infringed the fishery protection measures, including fines, seizures of fishing gear and catches, sequestration of the vessel or its temporary immobilisation, and suspension or withdrawal of the licence.
An argument from counsel for the Minister that the forfeiture was not a penalty, but a secondary punishment, was rejected by Mr Justice Feeney, who referred to the case Kostan -v- Ireland where the court held that the forfeiture of fishing gear under the 1959 Fisheries (Consolidation) Act was "intended to be a penalty".
DECISION
Mr Justice Feeney examined the principle of proportionality as enunciated in Heaney -v- Ireland , The Employment Equality Bill , Whelan -v- the Minister for Justice, Equality and Law Reform , and considered the treatment of the issue of fixed penalties in Osmanovic -v- the Director of Public Prosecutions. He said the court would consider the issue with particular regard to the test outlined in Heaney, and to the objectives of the control system applicable to the common fisheries policy, and its stated objectives.
Forfeiture of the catch was one of the sanctions expressly envisaged by the Council Regulation, he said. He was satisfied that the imposition of a significant and serious sanction in the form of the seizure of an entire catch was rationally connected to the objective of the regulation in establishing a control system. "The object of ensuring accurate and precise records is so central that a sanction which causes a forfeiture of all fish on board if convicted of failing to keep such records is not disproportionate," he said.
Referring to the fact that the charge had to be tried on indictment, he said that the applicant had failed to establish any basis to support his claim to have the offence tried summarily.
The applicant had failed to establish an entitlement to any of the reliefs sought, and they were refused.
The full text of this judgment is available on www.courts.ie
James O'Reilly SC and Donal O'Sullivan BL, instructed by Conways, Cork, for the applicant; Thomas O'Connell SC, Patrick McGrath BL, instructed by the Chief State Solicitor, for the respondents.